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[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Notices]
[Pages 11644-11645]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03599]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9780-1]

Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Applicant of Adair, OK

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 6 is hereby granting 
a project waiver of the Buy American requirements of ARRA Section 1605 
under the authority of Section 1605(b)(2) [manufactured goods are not 
produced in the United States in sufficient and reasonably available 
quantities and of a satisfactory quality] to the Oklahoma Conservation 
Commission (``the applicant'') for the for 2,400 square yards of fiber 
(coir) woven mats to be installed as part of a stream channel 
restoration on eleven sites located in Adair and Cherokee Counties, 
Oklahoma for the CWSRF wastewater treatment plant project. The required 
fiber (coir) woven mat is manufactured by foreign manufacturers and no 
United States manufacturer produces an alternative that meets the 
Applicant's technical specifications. This is a project specific waiver 
and only applies to the use of the specified product for the ARRA 
funded project being proposed. Any other ARRA project that may wish to 
use the same product must apply for a separate waiver based on the 
specific project circumstances. The Regional Administrator is making 
this determination based on the review and recommendations of the EPA 
Region 6, Water Quality Protection Division. The Applicant has provided 
sufficient documentation to support its request.
    The Assistant Administrator of the EPA's Office of Administration 
and Resources Management has concurred on this decision to make an 
exception to Section 1605 of ARRA. This action permits the purchase of 
the selected fiber (coir) woven mat is not manufactured in America, for 
the proposed project being implemented by the Applicant.

DATES: Effective Date: January 17, 2013.

FOR FURTHER INFORMATION CONTACT: Nasim Jahan, Buy American Coordinator, 
(214) 665-7522, SRF & Projects Section, Water Quality Protection 
Division, U.S. EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
1605(b)(2), EPA hereby provides notice that it is granting a project 
waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy 
American requirements, to the Applicant for the acquisition of selected 
made fiber (coir) woven mat. The Applicant has been unable to find 
American made fiber (coir) woven mat to meet its specific wastewater 
requirements.
    Section 1605 of ARRA requires that none of the appropriated funds 
may be used for the construction, alteration, maintenance, or repair of 
a public building or public work unless all of the iron, steel, and 
manufactured goods used in the project are produced in the United 
States unless a waiver is provided to the recipient by EPA. A waiver 
may be provided if EPA determines that: (1) Applying these requirements 
would be inconsistent with public interest; (2) iron, steel, and the 
relevant manufactured goods are not produced in the United States in 
sufficient and reasonably available quantities and of a satisfactory 
quality; or (3) inclusion of iron, steel, and the relevant manufactured 
goods produced in the United States will increase the cost of the 
overall project by more than 25 percent.
    The Applicant has requested a waiver for fiber (coir) woven mats to 
be installed as part of a stream channel restoration on eleven sites 
located in Adair and Cherokee Counties, Oklahoma. The applicant claims 
that the product required to meet project design and performance 
specification requirements is not manufactured in the United States.
    Restoration of stream banks in the Illinois River Watershed within 
Adair and Cherokee counties of northeastern Oklahoma requires 
installation requires a fiber (coir) woven mat to stabilize soil and 
overcome the high shear stress found in a stream environment. 
Additional key requirements of the project dictate a product that is 
100 percent biodegradable and has a functional lifespan of two to three 
years. The project specification criteria are listed below:

------------------------------------------------------------------------
                Property                           Specification
------------------------------------------------------------------------
Weight (ASTM D 5263)....................  23 oz/SY
Tensile Strength Dry (ASTM D 4595):
  Machine Direction.....................  1740 lbs/ft
  Cross direction.......................  1176 lbs/ft
Tensile Strength Wet (ASTM D 4595):
  Machine Direction.....................  1488 lbs/ft
  Cross direction.......................  1032 lbs/ft
Open area...............................  48%

[[Page 11645]]

 
Thickness (ASTM D 5199).................  0.35 inch
Recommended slope.......................  > 1:1
Recommended flow........................  12 fps
Recommended shear stress................  4.5 lbs/ft\2\
``C'' factor............................  0.002
Roll Size...............................  6.5' x 164'
Functional Longevity....................  2 to 3 Yrs.
------------------------------------------------------------------------

    Based on additional research conducted by EPA Region 6 there do not 
appear to be any American-made fiber (coir) woven mat that would meet 
the Applicant's technical specifications. EPA's national contractor 
prepared a technical assessment report based on the waiver request 
submittal, which confirmed the waiver applicant's claim that there is 
no American-made fiber (coir) woven mat available for use in the 
proposed waste water treatment system.
    EPA has also evaluated the Applicant's request to determine if its 
submission is considered late or if it could be considered timely, as 
per the OMB regulation at 2 CFR Sec.  176.120. EPA will generally 
regard waiver requests with respect to components that were specified 
in the bid solicitation or in a general/primary construction contract 
as ``late'' if submitted after the contract date. However, EPA could 
also determine that a request be evaluated as timely, though made after 
the date that the contract was signed, if the need for a waiver was not 
reasonably foreseeable. If the need for a waiver is reasonably 
foreseeable, then EPA could still apply discretion in these late cases 
as per the OMB Guidance, which says ``the award official may deny the 
request.'' For those waiver requests that do not have a reasonably 
unforeseeable basis for lateness, but for which the waiver basis is 
valid and there is no apparent gain by the ARRA recipient or loss on 
behalf of the government, then EPA will still consider granting a 
waiver.
    In this case this ``shovel ready'' project experienced significant 
delays during the preliminary design. Originally, the Oklahoma 
Conservation Commission contracted with the Oklahoma Department of 
Wildlife Resources (ODWR) to evaluate potential sites and to perform 
preliminary design and cost estimates to assess feasibility of 
including sites in this project. The intent was to hire a design/build 
team to perform the work. The ODWR had two leading experts in stream 
restoration who were assigned to this project. Some months into the 
project, both experts left ODWR to employment elsewhere. After months 
of trying to replace them, ODWR were unable to execute the project.
    Oklahoma Conservation Commission then contracted with Oklahoma 
State University to evaluate and select sites for the project. After 
months of work and careful coordination with Oklahoma Department of 
Environmental Quality and U.S. Army Corps of Engineers, Oklahoma State 
University identified 12 sites that should be able to qualify for 
nationwide 404 permits and might reasonably be restored within the 
project budget.
    The contract was awarded in Dec 2011 and site-specific design began 
in early 2012. Once designs were available and it was realized that 
coir fiber mats would be needed, Oklahoma Water Resources Board 
instructed the applicant to apply for a waiver request. EPA believes 
that the need for a waiver was not reasonably foreseeable and thus will 
treat the Applicant's waiver request as if timely submitted.
    The April 28, 2009, EPA HQ Memorandum, Implementation of Buy 
American provisions of Public Law 111-5, the ``American Recovery and 
Reinvestment Act of 2009,'' defines reasonably available quantity as 
``the quantity of iron, steel, or relevant manufactured good is 
available or will be available at the time needed and place needed, and 
in the proper form or specification as specified in the project plans 
and design.'' The Applicant has incorporated specific technical design 
requirements for installation of fiber (coir) woven mat at its 
wastewater treatment plant.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are ``shovel ready'' by requiring utilities, such as the 
Applicant, to revise their standards and specifications, institute a 
new bidding process, and potentially choose a more costly, less 
efficient project. The imposition of ARRA Buy American requirements on 
such projects otherwise eligible for State Revolving Fund assistance 
would result in unreasonable delay and thus displace the ``shovel 
ready'' status for this project. To further delay construction is in 
direct conflict with a fundamental economic purpose of the ARRA, which 
is to create or retain jobs.
    The Region 6 Water Quality Protection Division has reviewed this 
waiver request, and has determined that the supporting documentation 
provided by the Applicant is sufficient to meet the criteria listed 
under ARRA, Section 1605(b), Office of Management and Budget (OMB) 
regulations at 2 CFR 176.60-176.170, and in the April 28, 2009, 
memorandum, ``Implementation of Buy American provisions of Public Law 
111-5, the American Recovery and Reinvestment Act of 2009.'' The basis 
for this project waiver is the authorization provided in ARRA, Section 
1605(b)(2). Due to the lack of production of this product in the United 
States in sufficient and reasonably available quantities and of a 
satisfactory quality in order to meet the Applicant's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    EPA headquarters' March 31, 2009 Delegation of Authority Memorandum 
provided Regional Administrators with the authority to issue exceptions 
to Section 1605 of ARRA within the geographic boundaries of their 
respective regions and with respect to requests by individual grant 
recipients. Having established both a proper basis to specify the 
particular goods required for this project, and that these manufactured 
goods are not available from a producer in the United States, the 
Applicant is hereby granted a waiver from the Buy American requirements 
of ARRA, Section 1605(a) of Public Law 111-5 for the purchase of the 
selected fiber (coir) woven mat, using ARRA funds, as specified in the 
Applicant's request. This supplementary information constitutes the 
detailed written justification required by ARRA, Section 1605(c), for 
waivers ``based on a finding under subsection (b).''

    Authority:  Pub. L. 111-5, section 1605.

    Dated: January 17, 2013.
Ron Curry,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2013-03599 Filed 2-15-13; 8:45 am]
BILLING CODE 6560-50-P
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